Wage-and-hour lawsuits filed in federal court topped 7,000 last
year, up 32% from 2008. Workers are filing suit to recoup
overtime pay, alleging that they were required to work off the
clock, were misclassified as exempt from overtime requirements,
and were expected to handle work-related tasks after hours using
smartphones and other technology. Experts say the Fair Labor
Standards Act is outdated, as it does not take into consideration
the new workplace and new technologies.

Employers are now clearly distinguishing between workers and
managers and pulling back on telecommuting and company-issued
smartphones, especially as the U.S. Department of Labor cracks
down on violators. The amount of back wages recovered by DOL rose
28% from fiscal 2010 to $225 million in fiscal 2011, and it has
increased its wage-and-hour investigators by 40% to 1,050.

The latest issue of the ASA magazine examines the case of a
highly skilled engineer and competitive candidate seeking
compensation for overtime hours worked while on
assignment—something the staffing firm owner says she was
never authorized to do. Who's right?

The Rise of the
Independent Work ForceNew York Times (04/14/12) Alexandra Levit

Around 31% of the U.S. work force is independent or contingent,
including temporary workers, contractors, and the self-employed,
according to a 2006 government report. Contingent workers were
favored by employers during the recent recession because hiring
them helped hold down costs, and they are not likely to go away
given that employers remain hesitant to hire permanent
employees.

A new study from the RAND Corp. concludes that federal tax credit
programs encouraging employers to hire disabled veterans are
proving effective. In 2007, Congress added incentives to the Work
Opportunity Tax Credit program, offering employers who hired
disabled veterans who were recently discharged or unemployed for
more than six months up to $4,800 per hire. The new study finds
that the tax credit increased employment among disabled veterans
by two percentage points in 2007 and 2008, or approximately
32,000 jobs each year. "These findings suggest that tax
credits may be an effective means to reduce unemployment among
disabled veterans," says the study's author, Paul
Heaton.

Richard McDonald, the former chief executive of the Wilkins,
PA-based medical staffing firm World Health Alternatives Inc.,
pleaded guilty to one count each of wire fraud, securities fraud,
certifying false statements to the U.S. Securities and Exchange
Commission, payroll tax evasion, and income tax evasion as part
of a deal with the government to avoid prosecution on 15
additional charges. McDonald assumed the top post at the company
in 2003 and resigned in 2005, and during his tenure, he
transferred company money to his personal account and hid the
fact that the company had $2.3 million in unpaid payroll taxes,
among other things. The company filed bankruptcy six months after
his resignation and was acquired by Alpharetta, GA-based Jackson
Healthcare Solutions in 2006.

Three years after the Obama administration launched a push to
build a job-creating "green" economy, the millions of
jobs predicted have been slow to become reality. A $500 million
job-training program has so far helped fewer than 20,000 people
find work, far short of its goal. The White House said in
November 2010 that its clean-energy efforts had generated work
for 225,000 people and would ultimately create a total of 827,000
"job years"—implying average annual employment of
around 200,000 over the four years of Obama's presidential
term. White House officials stand by that estimate and say job
creation is only one aspect of the clean-energy push.

Backers of the notion of a "green collar" work force
argue that earth-friendly energy is a promising growth sector
that could create a bounty of stable, middle-class jobs and fill
the gap left by manufacturing work that has moved overseas.
However, Darren Divine, vice president for academics at the
College of Southern Nevada, says the fields of health care,
education, and technology are likely to provide the best
employment prospects in the years to come.

The conference features Charlie Cook, the pre-eminent authority on U.S. elections and
political trends; senior-level representatives from the U.S.
Department of Labor, U.S. Equal Employment Opportunity
Commission, and U.S. Department of Justice; a special session to
discuss the effects of federal health care reform; and more.

A federal judge in South Carolina ruled Friday that the National
Labor Relations Board does not have authority to require
employers subject to the National Labor Relations Act to post a
notice advising employees of their rights under the act. In so
ruling, U.S. District Judge David C. Norton said that the
legislative history of the act showed that Congress “did
not intend to impose a universal notice-posting requirement on
employers, nor did it authorize the board to do so.” The
ruling conflicts with a March 2 ruling by a federal district
court in the District of Columbia in which the court held that
failure to post the notice could not be treated as an unfair
labor practice charge or give employees more time to file charges
on other issues, but that the NLRB has the basic authority to
require the notice. (See March 5 issue
of Staffing Today.)

Officials of the NLRB and the U.S. Chamber of Commerce, the main
plaintiff in the South Carolina case, are examining what effect,
if any, Judge Norton’s ruling should be given beyond South
Carolina. There is speculation that the South Carolina ruling
will be appealed in an effort to resolve the conflict between the
two lower courts. The NLRB notice requirement is currently
scheduled to go into effect on April 30.

The U.S. Court of Appeals for the Ninth Circuit, in California,
has ruled in U.S. v. Nosal that a former employee of a
search and placement firm, who persuaded the firm's current
employees to access its computer data for the purpose of helping
him set up a competing business, could not be criminally
prosecuted under the federal Computer Fraud and Abuse Act.

After ending his tenure with the firm, the former employee
allegedly enlisted three current employees to access the
company's computer records and help him set up his business.
After he was criminally indicted, the former employee moved to
dismiss the indictment on the grounds that the CFAA was designed
to prosecute computer hackers, not former employees who allegedly
misappropriate their former employers' confidential
information. The appeals court agreed, ruling that the law was
not intended to prohibit persons from misappropriating the
information they have a right to access.

Staffing firms should note that in certain jurisdictions outside
California, staffing firm internal employees may be criminally
prosecuted under the CFAA for violating company computer policies
and misappropriating company trade secrets and confidential
information. Regardless of the jurisdiction, every staffing firm
should have clear policies prohibiting such activity.

U.S. Department
of Labor Extends Comment Period on Proposed FMLA
RulesHR.BLR.com (04/13/12)

The U.S. Department of Labor's Wage and Hour Division has
extended to April 30 the comment period for its proposed rule
regarding new military-related amendments to the Family and
Medical Leave Act. The proposed amendments would extend military
caregiver leave to veterans' family members for up to five
years after the service member leaves the military. Furthermore,
the proposal extends qualifying exigency leave to employees whose
family members serve in the regular armed forces and not just to
family members of National Guard members and reservists. The
proposed amendments would also add a special eligibility
provision for airline flight crews.

Business groups and unions expect the U.S. Senate to vote in the
next week or two on a joint resolution for congressional
disapproval that would block the National Labor Relations
Board's union election rule. The rule would speed up union
elections and is opposed by business groups, which say that it
would restrict employers' free speech rights and put a damper
on job growth. However, unions support the rule, indicating that
it would give workers a fair vote and minimize litigation. The
joint resolution has the backing of 45 Republicans, but it needs
a simple majority of 51 votes to pass.

A recent survey from AMN Healthcare indicates that people who
work in the health care sector have increased their use of social
media to look for and apply for new jobs. Until fairly recently,
personal networking and informal get-togethers might have been
the preferred way to learn about potential job openings. However,
social media makes “the cocktail party very large and very
private,” AMN president of health care staffing Ralph
Henderson told HealthLeaders Media. He notes that social media is
an excellent way for the health care industry to reach out to the
passive job seeker who is content in his or her job but would
change jobs if the right one came along. “The tools and
opportunities available through LinkedIn, Facebook, or Twitter
are very different now from just a few years ago,” he
notes.

More insurance companies are hiring employees this year, although
others are making do with their current staffing levels. Still,
51% of the 112 insurance companies surveyed by the Jacobson Group
say they may hire more employees in 2012, up from 44% a year ago.
Meanwhile, the Independent Insurance Agents and Brokers of
America has more job postings listed on the its job board this
year.

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About ASA

The American Staffing Association is the voice of the U.S. staffing industry. ASA and its affiliated chapters advance the interests of staffing and recruiting firms of all sizes and across all sectors through legal and legislative advocacy, public relations, education, and the promotion of high standards of legal, ethical, and professional practices. ASA members provide the full range of employment and work force services and solutions, including temporary and contract staffing, recruiting and permanent placement, outplacement and outsourcing, training, and human resource consulting.

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ASA Staffing Today is published by the American Staffing Association, with news abstracts copyrighted in 2015 by Information Inc., Bethesda, MD, and all other content copyrighted in 2015 by ASA. No part of this publication may be reproduced without permission.